- 10 -
Commissioner, supra at 10. Here, respondent argues, and we
agree, that IBM did not make the payment on account of a personal
injury. The release form appears to be a standard document used
by IBM for all of its employees who participate in the ITO II
Program. Moreover, the amount of the $52,169 lump-sum payment
was calculated on the number of years of service and petitioner's
salary. Finally, the release states that if petitioner were
rehired by IBM, he could be required to repay some portion of the
lump-sum payment based on the number of weeks off the IBM payroll
compared with the number of weeks' salary used to calculate the
lump-sum payment. As in Sodoma v. Commissioner, supra, and Webb
v. Commissioner, supra, the lump-sum payment herein appears to
have been severance pay rather than a payment for personal
injury. Severance pay, just like the pay it replaces, is taxable
income.
Finally, we note that petitioner has not alleged or come
forward with any evidence of the specific amounts of the payments
allocable to claims of tort or tort-type damages for personal
injuries. Failure to do so results in the entire amount being
presumed to be taxable. See Taggi v. United States, supra; Getty
v. Commissioner, 91 T.C. 160, 175-176 (1988), affd. as to this
issue and revd. on other issues 913 F.2d 1486 (9th Cir. 1990).
The release makes no allocation, and petitioner has not set forth
any facts upon which he would rely to prove an allocation.
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